[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 8, 2005
No. 04-12183
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00274-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY LEE WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 8, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Jimmy Lee White appeals his conviction and sentences for possession with
intent to distribute five grams or more of cocaine base (crack cocaine), 21 U.S.C.
§ 841(a)(1) & (b)(1)(B)(iii); possession with intent to distribute cocaine, 21 U.S.C.
§ 841(a)(1) & (b)(1)(C); and possession with intent to distribute marijuana, 21
U.S.C. § 841(a)(1) & (b)(1)(D). After the district court denied his motion to
suppress certain statements he had made to law enforcement, White pleaded guilty
to all charges. White did not at any time reserve a right to appeal the denial of the
motion to suppress. On appeal, White raises three issues, which will be discussed
in turn.
First, White argues that the district court erred in denying his motion to
suppress his statements because the statements were obtained in violation of his
Fifth Amendment right to remain silent. He contends that, after he invoked his
right to remain silent, law enforcement resumed interrogation without
“scrupulously honoring” his previous exercise of his right to remain silent.
When a defendant knowingly and voluntarily enters an unconditional guilty
plea, he waives all non-jurisdictional defects in his court proceedings. United
States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003), cert. denied, 124 S.Ct. 1146
(2004). A district court’s refusal to suppress evidence is non-jurisdictional and is
waived by a guilty plea. United States v. McCoy, 477 F.2d 550, 551 (5th Cir.
1973). The Federal Rules of Criminal Procedure provide that: “With the consent
of the court and the government, a defendant may enter a conditional plea of guilty
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or nolo contendere, reserving in writing the right to have an appellate court review
an adverse determination of a specified pretrial motion.” Fed.R.Crim.P. 11(a)(2);
see also United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (holding that
a defendant who wishes to preserve appellate review of a non-jurisdictional defect
while at the same time pleading guilty can do so only by entering a “conditional
plea” in accordance with Rule 11(a)(2)).
White has waived his right to appeal the denial of his motion to suppress by
entering into an unconditional guilty plea, without reserving in writing the right to
appeal the denial of his motion to suppress. White, moreover, has no argument in
his brief that his guilty plea was not knowing or voluntary. Thus, we will not
review the denial of the motion to suppress.
Second, White argues that the district court erred in assessing a two-level
sentencing enhancement for possession of a weapon because, pursuant to Blakely
v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the fact of
possession of a weapon was not decided by the jury beyond a reasonable doubt nor
admitted by him. White did not raise this issue below.
When a defendant fails to make an objection or argument in the district
court, review is limited to plain error. See United States v. Duncan, 381 F.3d 1070,
1073 (11th Cir. 2004). “We have discretion to correct an error under the plain
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error standard where (1) an error occurred, (2) the error was plain, (3) the error
affected substantial rights, and (4) the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. at 1073-74 (internal citations
omitted).
Two important cases have been issued since the time that White submitted
his briefs. The first is United States v. Booker, 542 U.S. __, 125 S.Ct. 738 (2005),
in which the Supreme Court held that the use of a mandatory sentencing guidelines
system in which sentences are increased because of an enhancement based on facts
found by the judge but not admitted by the defendant or found by the jury violated
the Sixth Amendment right to trial by jury. The second case is United States v.
Rodriguez, __ F.3d __, 2005 WL 272952 (11 th Cir. Feb. 4, 2005), in which this
court applied the plain error test to an appellant’s Booker challenge. There, the
court determined that the error committed by the sentencing judge was “the use of
extra-verdict enhancements to reach a guidelines result that is binding on the
sentencing judge; the error is the mandatory nature of the guidelines once the
guidelines range has been determined.” Rodriguez, 2005 WL 272952 at *9. Under
the third prong of the plain error test, the court continued,
where the effect of an error on the result in the district court is
uncertain or indeterminate–where we would have to speculate–the
appellant has not met his burden of showing a reasonable probability
that the result would have been different but for the error; he has not
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met his burden of showing prejudice; he has not met his burden of
showing that his substantial rights have been affected.
Id. at *10 (citing Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090
2105 (1999)).
Like the appellant in Rodriguez, White cannot meet his burden of showing
that his substantial rights have been affected. He has not produced any evidence
that the district court felt constrained by the mandatory nature of the guidelines and
only because of those constraints sentenced him to 87 months on Counts 1 and 2
and 60 months on Count 3.1
Third, White argues that the district court erred in failing to apply a
two-level reduction under U.S.S.G. § 2D1.1(b)(6) when he satisfied all the criteria
set forth in § 5C1.2 (listing criteria for safety valve relief as found in 18 U.S.C.
§ 3553(f)).
We review sentencing claims raised for the first time on appeal for plain
error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Section
1
Moreover, White’s Blakely challenge is focused solely on the two-level enhancement
for possession of a weapon. However, at sentencing, White expressly withdrew his objection to
this enhancement, in effect admitting that he did in fact possess the weapon and the enhancement
was in fact appropriate. Thus, no judicial fact-finding was involved, and there would have been
no Sixth Amendment or Blakely error even in the context of mandatory guidelines because of
White’s admission. See United States v. Shelton, __ F.3d __, 2005 WL 435120 at *4 (11th Cir.
Feb. 25, 2005) (finding no Sixth Amendment error in similar circumstances). Even though there
was no Sixth Amendment error, there was Booker error in that the sentencing judge considered
the Guidelines as binding rather than advisory. Id. at *5. However, as explained in the text,
White cannot satisfy the plain error analysis with respect to this error.
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2D1.1(b)(6) of the Sentencing Guidelines provides a two-level reduction for a
defendant who meets the five requirements of the safety valve relief set forth in
U.S.S.G. § 5C1.2. One criteria requires in pertinent part that the defendant did not
use violence or credible threats of violence or possess a firearm or other dangerous
weapon (or induce another participant to do so) in connection with the offense.
U.S.S.G. § 5C1.2(a)(2).
The district court did not commit plain error in failing to apply a reduction
under U.S.S.G. § 2D1.1(b)(6) pursuant to § 5C1.2 where White did not dispute that
he possessed firearms in connection with his offenses.
Accordingly, we affirm White’s conviction and sentences.
AFFIRMED.2
2
Appellant’s request for oral argument is denied.
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